Admissibility of Evidence - R. v. Lafrance 2022 SCC 32 July 22, 2022
The Supreme Court of Canada had a case before them regarding the lawfulness of an interrogation carried out by police. The case before the court, R. v. Lafrance, 2022 SCC 32, followed the accused's confession to killing the victim following two encounters with the same officer that took place a number of weeks apart in 2015.
The first encounter took place early in the morning when a number of vehicles and armed officers came to the accused, Lafrance's, home and requested he get dressed and leave the premises with them. At this time, officers had a warrant and were able to search the premises. An officer, Sgt. Eros notified Lafrance that he needed to interview him regarding a man's death and required a statement from Lafrance. Lafrance agreed and was given the option to arrive at the station himself or to be driven by the police. Lafrance was driven by the police to the station.
The interview took place in a room at the back of the station, behind two locked doors, and it lasted three and a half hours. It was at this time that Lafrance was notified he was a suspect in the murder investigation.
The next meeting was following Lafrance's arrest, where he was given the option to contact a defence lawyer. He called a Legal Aid lawyer; the nature of this call and the advice given were in question at the Court of Appeal and the Supreme Court of Appeal level, as this had been the accused's first interaction with a defence lawyer, and both courts felt it possible that Lafrance did not understand his rights.
During the interview with Sgt. Eros, Lafrance requested to speak to his father as this would be his only way of obtaining a criminal defence lawyer, and he did not want to continue with the interview without the guidance and legal advice of a lawyer. When questioned regarding his interview with Legal Aid, the accused answered that he was told to obtain a lawyer before speaking. The accused continued with the interview, during which he confessed to the murder.
Challenging the Admissibility of a Confession and Your Rights to a Lawyer
The accused challenged the admissibility of the confession at trial, citing the infringement of section 10(b) of the Charter that states "everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." The accused further argued that they had been detained during the first interview and during the arrest. At trial, the judge ruled that the accused had not been detained, and there was no need for police to provide a second opportunity to speak with legal counsel on arrest. The accused was subsequently convicted of second-degree murder.
The Court of Appeal
The Court of Appeal disagreed with the trial judge's reasoning, stating the confession should have been excluded under section 24(2) of the Charter:
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Thus, the majority of the Court of Appeal ordered a new trial.
The Crown appealed to the Supreme Court of Canada, but this appeal was dismissed. The Supreme Court applied numerous tests to the case and found that the accused's s. 10(b) rights were breached, and the confession is not admissible. During the first meeting, the court identified a breach as the accused was not informed of his right to counsel and that the police did, in fact, detain the accused despite not being physically restrained.
The day of the arrest brought another breach, where it was made clear that the accused did not understand his rights or had been given improper counsel by Legal Aid and was not given the opportunity to clarify in order to proceed in full, sufficient knowledge of his rights. One test applied was outlined in R. v. Grant, which is the test employed in analyzing cases of police detainment; the second test, R. v. Sinclair, is employed in determining whether denying an accused's request for a further consultation with a lawyer is a breach of s. 10(b) rights.
In R. v. Grant, courts must consider:
- The circumstances of the encounter and how they would reasonably be perceived by the individual, essentially, whether the police are "providing general assistance, maintaining general order, or making general inquiries"; in this case, the court found it would be unreasonable to believe a person in the accused's shoes – woken in the morning by a number of armed officers and told to leave the premises with them – would believe the believe were only doing any one of those three items on the list.
- The nature of the police conduct, meaning the language used, physical contact or even proximity, the location, etc., are also evaluated; in this case, the accused may have been told that he was able to leave the interrogation room, but the location of the room – at the back of the station and behind two locked doors – did not support the statements. In addition, the encounter with police lasted hours, during which time the accused remained under supervision, with Sgt. Eros waiting for him outside the bathroom.
- The court must also consider, if relevant, the accused's age, physical stature, minority status and level of sophistication. In this case, the accused was 19, smaller in stature than the officers, Indigenous, and, though deemed intelligent, unaware of the court process, which would suggest a lower level of sophistication as it pertains to court processes.
The court, in evaluating these criteria, found that the accused was detained.
The test outlined in R. v. Sinclair in determining exceptional circumstances where a second consultation may be allowed with counsel is as follows:
The police invite the accused to take part in non-routine procedures that counsel would not consider at the time of the initial consultation;
There is a change in jeopardy that could affect the adequacy of the advice received during the initial consultation;
There is reason to question the detainee's understanding of his rights.
The court found that the third circumstance did apply to the accused in this case and thus upheld the Court of Appeal's decision that the confession was not admissible in court and, if admitted, would bring the administration of justice into disrepute as under s. 24(2) of the Charter. A new trial was ordered.
This case thus reaffirms the need to examine an accused's understanding of their rights during an interrogation and also requires that other circumstances such as age, minority status, and sophistication be considered where relevant.
Do You Have a Right to Speak to a Lawyer?
In Ontario, it is your right to seek legal counsel and legal guidance from your criminal defence lawyer when speaking to the police. If you are arrested or detained, you have the right to remain silent and follow the guidance of your criminal defence lawyer. If you're not sure what to do when you end up in police custody, it's best practice to stay quiet and only request to talk to your lawyer, who will provide you with strategic legal advice.
How to Exercise Your Right to Legal Counsel
If you or a loved one is arrested, get in touch with your lawyer as soon as possible.
- Clearly State Your Request: Inform the police clearly and unequivocally that you wish to speak to a lawyer. You have the right to do this immediately upon being arrested or detained.
- Wait for Legal Advice: Do not discuss your case or answer questions beyond basic identification information until you have received legal advice from your lawyer.
- Follow Your Lawyer's Guidance: Once you've consulted with your lawyer, follow their advice carefully during any interactions with law enforcement.
These steps will help you navigate the process of securing and benefiting from legal counsel if you are ever detained or arrested.
At Karrass Law, our criminal defence lawyers for murder provide tailored legal guidance and bring years of expertise to the table. Protect your rights and get the best results possible with representation from the experienced and reputable legal team at Karrass Law.